Court of Appeal Upholds Injunction Against Placement of Investigative Materials in Officers Personnel Files

Posted on Thursday, April 01, 2004 at 12:00PM
Posted by Attorney Bob Krause

Officers Timothy Wade, Jeffrey Wade, Steve Huffman, Debbie Gray and Robert Dubie (collectively plaintiffs) were all employed by the city of Blythe as police officers. The city informed each of the officers in the years 2000 or 2001, that they were the subject of complaints being investigated by the Internal Affairs department. More than one year after the notifications, the officers were notified that the closed investigation reports would be placed into their personnel files. The investigations were closed only after demands from this author based on the passing of time limits under Govt. Code § 3304 (d). I filed a petition for writ of mandate claiming that the city’s placement of the internal investigation reports into the personnel files constituted punitive action, which was barred by the statute of limitations. We concurrently filed a request for injunctive relief. After a hearing on August 16, 2002, the trial court entered a judgment finding that insertion of the reports into the officers’ personnel files was punitive and therefore violated Government Code section 3304, subdivision (d), enjoining the city from placing the reports in the personnel files, and ordering the city to remove any such reports from the officers’ personnel files. It also awarded attorney fees and costs.

The city appealed to the California Fourth District Court of Appeal, which recently, in an unpublished decision, ruled in favor of the officers, awarded costs, and sent Castle, Petersen & Krause back for additional attorney’s fees on behalf of the officers and the Legal Defense Fund.

This case arose when the Blythe police administration refused a demand to remove the offending materials from the officers’ respective files. The city, in essence, cried…what are we to do with them? We took the position that was their problem, caused by their failure to simply obey the law. This was not an onerous burden to a police administration we thought. We sued and they lost.

We reasoned that since the one-year statute of limitations under Govt. Code § 3304 (d) had passed, no punitive action could be taken, and that the placing of the uncompleted IA reports into the files amounted to punitive action even though no findings were made.

The city claimed its hands were tied and notwithstanding government code protections of the officers, it had to maintain the materials in the personnel files.

The City’s Claim That They Had No Choice Was Shot Down By Both Courts

The Fourth District Court of Appeal wrote:

“City claims that the trial court’s order was erroneous because (1) it was required by law to maintain the records in the plaintiffs’ personnel files, and (2) placement of the reports into the personnel files did not constitute punitive action (the courts examined and rejected both of these contentions).

City cites Penal Code sections 832.8 and 832.5, Government Code section 34090, Aguilar v. Johnson (1988) 202 Cal.App.3d 241 (Aguilar), Miller v. Chico Unified School Dist. (1979) 24 Cal.3d 703 (Miller) and Pitchess v. Superior Court (1974) 11 Cal.3d 531 for the proposition that it was required by law to insert the investigation reports into the officers’ personnel files (the court reasoned that)…none of these authorities bears such a mandate…that;

1. Penal Code section 832.8 simply defines the documents that are considered personnel records for purposes of maintaining confidentiality. It does not require that investigation reports must be maintained in an officer’s personnel file. Rather, it merely states that when such reports are maintained, they are considered confidential under Penal Code section 832.7.

2. Penal Code section 832.5 pertains to the maintenance of citizen complaints regarding department or agency personnel. The city points to the requirement in subdivision (b) that citizen ‘complaints and any reports or findings relating to these complaints shall be retained for a period of at least five years’ as mandating that such reports be kept in an officer’s personnel file. However, that subdivision also states that all such retained complaints ‘may be maintained either in the peace or custodial officer’s general personnel file or in a separate file designated by the department or agency as provided by department or agency policy, in accordance with all applicable requirements of law. However, prior to any official determination regarding promotion, transfer, or disciplinary action by an officer’s employing department or agency, the complaints described by subdivision (c) shall be removed from the officer’s general personnel file and placed in [a] separate file designated by the department or agency, in accordance with all applicable requirements of law.’ An officer’s general personnel file is the one ‘maintained by the agency containing the primary records specific to each peace or custodial officer’s employment, including evaluations, assignments, status changes, and imposed discipline.’ (Pen. Code, § 832.5, subd. (d)(1).) These general personnel files are apparently the ones at issue in the instant case. Thus, rather than mandating that complaints be kept in the officer’s personnel file, Penal Code section 832.5 specifically authorizes them to be maintained elsewhere, and even mandates that they be kept elsewhere for purposes of determining promotion, transfer, or disciplinary action. It further requires that complaints found to be frivolous, unfounded or exonerated ‘shall not’ be kept in the general personnel files. (Pen. Code § 832.5, subd. (c).) Further, simply because the records are ‘deemed’ personnel records for purposes of the California Public Records Act (Govt. Code, § 6250 et seq.) and Evidence Code section 1043 (involving Pitchess motions), it does not follow that they must be maintained in the officer’s general personnel file. Deeming them such for certain limited purposes does not require that they be so considered for all purposes.

Similarly, Government Code section 34090 requires that city records be maintained for at least two years and allows the destruction of city records, with legislative approval and written permission of the city attorney only after that time has passed. Again, assuming that the subject documents are city records under this code section, though they are required to be maintained, Government Code section 34090 does not require that they be kept in the officer’s personnel file.

In summary, none of the authorities cited by the city imposes a legal mandate that the reports at issue be maintained in the plaintiff’s general personnel files. This argument does not support a reversal of the trial court.”

Bottom Line…The Investigative Reports Are Out

The city took a shotgun approach in defending it’s unlawful actions. The Court of Appeal, at length and in detail, shot down each “doom and gloom” argument the city made. The points are too lengthy for one article. Probably the most important finding by each court was that the materials alone constituted “punitive action” under the P.O.B.R.

We cited numerous authorities in our pleadings, all of which were adopted by the court in its written decision. In short, the court ruled there need not be an adverse finding by the agency. Rather, the mere placement of the investigative materials into the files was punitive under the code. Since the placement was after the one-year statute, the materials must be removed.

Case Instructive For Future Violations

While the court declined to publish this particular case its findings are instructive on how to approach similar future violations. The law firm of Castle, Petersen & Krause is happy to share the decision with associations facing this dilemma.

About the Author: Bob Krause is a partner in the law firm of Castle, Petersen & Krause LLP, Newport Beach/Temecula. A retired sergeant and P.O.A. activist from Oceanside P.D., Krause has been representing peace officers’ interests for more than 20 years.

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